I have been a bit slow on the uptake considering the recent Prop 8 ruling in California and the confirmation of Elena Kagan to the Supreme Court. Some of this has been work-related, replete with long meetings and other social functions, but part of me has also been content to read much of the opinions surrounding the Prop 8 ruling in California.
For those not familiar with the case, rather than summarize it here, I’ll merely point to the wiki for background.
But here is the gist of the opinion: “Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.”
A quick gut check gives me pause. Is there really no legitimate reason – not even one – for the state to promote heterosexual marriage to the exclusion of homosexual marriage? The “legitimate reason” does not even have to be correct, it need only be plausible. Almost any justification will suffice.
Despite the research, think tanks, studies, history, popular opinion, and health considerations for promoting traditional marriage, is there really not even one reason to maintain the status quo? Apparently not for Judge Walker.
The proponents of Prop 8 do not have a significant burden here. In fact, the burden is quite minimal. They need only stand on the weight its research, statistical studies, and history to support its contention. The plaintiffs have the burden – seemingly impossible – to show that the government does not even have a conceivable reason for protecting marriage.
The plaintiffs carried the day. I cannot say I am not surprised by the result of Judge Walker’s opinion. We are, of course, partially in the alternate reality that is California and the Ninth Circuit. From a gut reaction, I find it incredulous that there is not a rational basis reason for traditional marriage.
Rational basis view is perhaps the easiest burden to satisfy.
What is interesting is that Judge Walker appears to ratchet up rational basis review for homosexuals. Homosexuals, of course, are not recognized as a suspect class, but increasingly, the class forms a bubble between rational basis review and intermediate scrutiny (the latter reserved for gender and illegitimacy). This has been come to be known amongst constitutional scholars as rational basis “with bite.” It has happened before with Romer v. Evans and Lawrence v. Texas.
Nonetheless, homosexuality is not a suspect class and is not protected as such and it is not within the province of a district court judge to create such precedent. I’m still making my way through Judge Walker’s opinion (it’s 136 pages), but it is certainly disingenuous to assert that the state has no legitimate interest in protecting traditional marriage. He would have been on much, much sounder legal footing had he ruled the for the Prop 8 proponents and then forced the plaintiffs to appeal to the Ninth Circuit and then to the Supreme Court. As it stand now, it seems like the decision is on a collision course to the Supremes.
Opinion is here.